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IN THIS NEGLECT PROCEEDING STEMMING FROM THE PARENTS’ REFUSAL TO ALLOW THEIR TEENAGE CHILD TO RETURN HOME, THE PARENTS SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF THEIR TEENAGE CHILD’S BEHAVIOR WHICH RESULTED IN CRIMINAL PROCEEDINGS AND AN ORDER OF PROTECTION IN FAVOR OF FATHER, AS WELL AS EVIDENCE OF THEIR ATTEMPTS TO MEET WITH THE AGENCY AND WORK OUT A PLAN (FIRST DEPT). ​

The First Department, reversing Family Court, determined that respondent-parents should have been allowed to present evidence of their teenage child’s behavior in this neglect proceeding. The parents refused to allow the child to return home after a physical fight between the child and father which resulted in criminal proceedings against the child and an order of protection in favor of the father:

Parents are obligated to support a child under the age of 21 (Family Court Act § 413[1][a]) and to exercise a “minimum degree of care” in supplying the child with adequate food, clothing, shelter, and education … . In determining whether a parent has neglected a child by failing to meet that standard, the court “must evaluate parental behavior objectively,” by asking whether “a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing” … . This Court has concluded in many circumstances that a child’s history of disciplinary issues did not justify a parent in excluding the child from the home while failing to cooperate with the agency’s efforts to address the child’s problems and to return the child to the home … .

However, none of those cases involved pending criminal proceedings and an order of protection against the child and in favor of one parent. Respondents were entitled to a full and fair opportunity to present evidence … showing that they acted reasonably as prudent parents under all the circumstances … , and that, based on a founded fear it would be unsafe for the child to return home, they were unable to continue to care for him … . Instead, the court limited evidence to the time period alleged in the petition, precluding respondents from presenting other evidence concerning the child’s behavior. Respondents also were precluded from presenting evidence of their attorney’s communications with the agency, which was offered to show their willingness to meet and plan with the agency provided that the child was not present and their attorney could be present. Matter of Elijah M. (Robin M.), 2019 NY Slip Op 05471, First Dept 7-9-19

 

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TRIAL COURT DID NOT, AS PROMISED, INSTRUCT THE JURY ON THE PURPOSES OF INTRODUCING HEARSAY EVIDENCE OF THE CHILD-VICTIM’S DISCLOSURES OF SEXUAL ASSAULT AND DEFENSE COUNSEL DID NOT OBJECT; THE MAJORITY CONCLUDED THE ISSUE WAS NOT PRESERVED FOR APPEAL; TWO DISSENTERS ARGUED THE ERROR WAS REVERSIBLE AND DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that any error in the trial court’s failure to instruct the jury on the purposes for the introductions of evidence of the child-victim’s disclosure of sexual assault in 2009 and in 2014, evidence which would otherwise be inadmissible bolstering, was not preserved. The dissenters argued that the error was reversible and defense counsel’s failure to object constituted ineffective assistance:

From the dissent:

Prior to trial, the People moved in limine for permission to introduce evidence that the victim reported an incident of sexual contact with defendant to her aunt in 2009, and that she again disclosed the incident in 2014. The court concluded that the People could introduce evidence that the victim made a prompt complaint in 2009 if they laid a proper foundation establishing that the complaint was made at the first suitable opportunity, and that they could introduce evidence that the victim reported the contact in 2014 for the sole purpose of establishing how the investigative process began at that time. The court indicated that it would provide an appropriate limiting instruction if the evidence was introduced.

At trial, the People introduced evidence that the victim reported the sexual contact to her aunt in 2009 and to several other people at various times in 2014 and 2015. Nevertheless, the court did not give a limiting instruction either when the testimony was given or at the end of the case. Although we agree with the majority that defendant failed to preserve for our review his contention that the court erred in failing to give the promised charge, we conclude that defendant was deprived of a fair trial by that error, and we would exercise our power to review that contention as a matter of discretion in the interest of justice. * * *

… [Defendant] was deprived of effective assistance by his attorney’s failure to object the court’s failure to give the promised limiting instruction. The majority concludes that defense counsel’s failure to preserve that issue does not rise to the level of ineffective assistance, citing People v Gross(26 NY3d 689, 696 [2016]). We respectfully disagree. In Gross, the majority of the Court of Appeals concluded that defense counsel may not have objected to the prosecutor’s comments on the evidence for tactical reasons. Here, there was no possible tactical basis for “defense counsel’s inexplicable failure to object” when the court failed to give the promised limiting instruction … . People v Hymes, 2019 NY Slip Op 05441, Fourth Dept 7-5-19

 

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DEFENDANT WAS ENTITLED TO FURTHER INQUIRY TO DETERMINE WHETHER SHE VIOLATED THE PLEA AGREEMENT, COUNTY COURT DID NOT SENTENCE HER IN ACCORDANCE WITH THE PLEA AGREEMENT BASED SOLELY ON THE PROSECUTOR’S ASSERTION SHE DID NOT COMPLETE A MENTAL HEALTH COURT PROGRAM (SECOND DEPT).

The Second Department determined defendant was entitled to further inquiry into whether she violated the terms of her plea agreement. Defendant was not sentenced in accordance with the agreement based solely on the prosecutor’s assertion she had not successfully completed a Mental Health Court program:

The County Court failed to conduct an inquiry sufficient to assure that the defendant had, in fact, violated the terms of the plea agreement and that the information upon which it based the sentence was reliable and accurate … . Thus, we remit the matter … for a sufficient inquiry and a new determination as to whether the defendant violated the terms of the plea agreement, and for resentencing thereafter.

Moreover, as acknowledged by the People, the County Court should not have pronounced sentence without first receiving a presentence investigation report … . People v Dimon, 2019 NY Slip Op 05417, Second Dept 7-3-19

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT SUBMIT ADMISSIBLE PROOF OF STANDING PURSUANT TO A MERGER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 and did not demonstrate it had standing, based upon a merger, to foreclose:

… [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304  … . The plaintiff did not submit an affidavit of service or proof of mailing by the United States Postal Service evidencing that the plaintiff properly served the defendants pursuant to RPAPL 1304. Instead, the plaintiff relied upon the affidavit of its employee Lesa Duddey, a vice president of document control. In her affidavit, Duddey averred that her “review of records” maintained by the plaintiff “reveal[ed]” that the plaintiff sent 90-day notices by registered or certified mail and first class mail to each of the defendants, and she described a correspondence log that purportedly evidenced such mailings. “While mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay” … , here, the plaintiff failed to submit a copy of the correspondence log in support of its motion. Consequently, the statements in Duddey’s affidavit regarding the correspondence log are inadmissible hearsay and lack probative value … . The plaintiff did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . The presence of 20-digit numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304 … .

… [W]e note that the plaintiff also failed to submit sufficient evidence in admissible form of ABN’s merger with the plaintiff to establish, prima facie, that the plaintiff was the holder of the note at the time of the commencement of the action … . CitiMortgage, Inc. v Osorio, 2019 NY Slip Op 05383, Second Dept 7-3-19

 

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EVIDENCE OF PRIOR UNCHARGED SEXUAL OFFENSES WAS NOT ADMISSIBLE UNDER MOLINEUX, HEARSAY EVIDENCE OF VICTIM’S DISCLOSURE TWO AND A HALF YEARS AFTER THE ALLEGED INCIDENT WAS NOT ADMISSIBLE AS A PROMPT OUTCRY, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined detailed evidence of prior uncharged sexual offenses was not admissible under Molineux. The defendant was charged with criminal sexual act alleging defendant asked a six or seven year old boy to perform oral sex on him. The People presented in their direct case the testimony of two female relatives of the defendant alleging sexual offenses occurring more than seven years before the victim’s disclosure in the instant case. County Court also erroneously allowed hearsay about the victim’s disclosure, two and a half years after the alleged incident, under the prompt outcry exception to the hearsay rule:

The female relatives specifically testified to repeated instances of oral sex, vaginal sex and digital penetration by defendant, and one of the female relatives stated that defendant forced her and the other female relative to perform sexual acts upon each other as he watched. Contrary to County Court’s conclusion, such detailed testimony was not necessary to complete the narrative as to how and why the victim’s disclosure occurred … . Additionally, the prior uncharged acts did not bear a sufficient similarity to the incident underlying the charged crimes so as to constitute, as the People argued, a common scheme or plan or demonstrate defendant’s intent or motive … . Accordingly, as the People failed to establish that the proffered evidence was probative of a material issue other than defendant’s criminal propensity, County Court erred in permitting such evidence … . Moreover, even if the proffered evidence were relevant to some nonpropensity purpose, County Court erroneously determined that the probative value of the evidence outweighed its prejudicial effect … . People v Saxe, 2019 NY Slip Op 05345, Third Dept 7-3-19

 

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RECORD WAS INSUFFICIENT TO DETERMINE THE LEVEL OF PREJUDICE CAUSED BY PLAINTIFF’S FAILURE TO PRESERVE THE PHONE WHICH ALLEGEDLY CAPTURED IMAGES OF THE INCIDENT AT THE HEART OF THE LAWSUIT, DISMISSAL OF THE COMPLAINT REVERSED AND MATTER REMITTED FOR FURTHER DISCOVERY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that the record was not sufficient to conclude whether dismissal of the complaint was a proper sanction for spoliation of evidence. Plaintiff alleged defendant negligently or intentionally struck defendant with an all-terrain vehicle (ATV). Defendant asked plaintiff to preserve a phone which allegedly contained images of the incident. Plaintiff did not preserve the phone but provided one image and one video which were alleged to have been on the phone. Supreme Court dismissed the complaint as a sanction for spoliation. The Third Department noted there was evidence that all the metadata on the phone had been preserved and remitted the matter for discovery and, if necessary, an appropriate sanction:

… [T]he factors to be considered in determining the appropriate sanctions for such failures are “the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as a matter of elementary fairness” … . …

… [W]e remit to Supreme Court with direction for plaintiff to promptly obtain and provide to defendant all photos, videos and metadata pertinent to the incident that have been preserved in any source, or to provide defendant with full access to any such stored photos, videos and metadata. The retrieval and examination of this information — or the continued failure to do so — will permit Supreme Court to reexamine, upon a full record, whether pertinent electronic information has been lost as a result of plaintiff’s failure to preserve the phone, to what extent defendant has been prejudiced by that loss and, thus, whether dismissal, an adverse inference charge or some other sanction may be appropriate … . LaBuda v LaBuda, 2019 NY Slip Op 05372, Third Dept 7-3-19

 

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STATEMENTS MADE BY DEFENDANT DURING A CONTROLLED PHONE CONVERSATION WITH THE MOTHER OF THE ALLEGED CHILD VICTIM SHOULD NOT HAVE BEEN SUPPRESSED; STATEMENTS MADE BY DEFENDANT IN A CLOSED ROOM AT THE SHERIFF’S OFFICE, WHERE DEFENDANT WAS INTERROGATED AND CONFRONTED WITH HIS INCULPATORY STATEMENTS, SHOULD NOT HAVE BEEN SUPPRESSED; ALTHOUGH DEFENDANT WAS INTERROGATED, HE WAS NOT IN CUSTODY (FOURTH DEPT).

The Fourth Department, on an appeal by the People in this child sexual contact case, determined defendant’s statement, made during a controlled phone conversation with the mother of the child, should not have been suppressed. The Fourth Department further found that statements made by the defendant during interrogation at the sheriff’s office should not have been suppressed because the defendant was not in custody at the time of the interrogation:

… [W]e conclude that the mother “did not make a threat [or a promise] that would create a substantial risk that defendant might falsely incriminate himself”… . We further conclude that the controlled call did not constitute an unconstitutionally coercive police tactic; nor were the tactics employed by the mother during the call unconstitutionally coercive (see generally CPL 60.45 [2] [b] [ii] …), and “[d]eceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … . …

… [A]lthough defendant’s interview occurred at the Sheriff’s Office, that fact “does not necessarily mean that he is to be considered in custody’ ” … . Defendant voluntarily agreed to meet the investigators at the Sheriff’s Office and arranged for his own transportation to and from the interview … . When defendant arrived, the investigators informed him that he was free to leave … . In fact, defendant left the Sheriff’s Office at the conclusion of the interview despite making inculpatory statements. Further, defendant was not restrained during the interview, and the door to the interview room was unlocked … . Although the investigators confronted defendant with the statements that he made during the controlled call, the fact that the questioning may have turned accusatory in nature did not render the interview custodial given the other circumstances present in this case … . People v Morris, 2019 NY Slip Op 05264, Fourth Dept 6-28-19

 

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IN THIS CONSTRUCTIVE POSSESSION CASE, THE INVESTIGATOR’S ASKING DEFENDANT WHERE HE RESIDED WAS DESIGNED TO ELICIT AN INCRIMINATING RESPONSE, THEREFORE DEFENDANT’S RESPONSE WAS NOT PEDIGREE INFORMATION AND A CPL 710.30 NOTICE WAS REQUIRED, ADMISSION OF THE STATEMENT WAS HARMLESS ERROR HOWEVER (FOURTH DEPT).

The Fourth Department determined the defendant’s answer to the investigator’s asking where defendant resided, for which no CPL 710.30 notice was provided, was not pedigree information and should not have been admitted in evidence. The drug-possession charge was founded on constructive possession. Therefore asking defendant where he resided was designed to elicit an incriminating response. The error was deemed harmless however:

Defendant also contends that the court erred in admitting in evidence an oral statement of defendant regarding his address for which no CPL 710.30 notice had been given. The statement at issue was defendant’s response to a question about where he resided, and it was made to one of the principal investigators, who had executed a search warrant at the home of defendant’s parents. As the People correctly concede, defendant’s statement regarding his address was not pedigree information for which no CPL 710.30 notice was required … because, under the circumstances of this case, the investigator’s question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crime[] charged” … . The court thus erred in admitting the statement in evidence in the absence of a CPL 710.30 notice … . People v Tucker, 2019 NY Slip Op 05274, Fourth Dept 6-28-19

 

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT HEARSAY EVIDENCE DEMONSTRATING ONE OF THE ROBBERY VICTIMS, WHO DID NOT TESTIFY, FAILED TO IDENTIFY THE DEFENDANT IN A LINEUP, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the defendant should have been allowed to present evidence that one of the robbery victims, who did not testify, failed to identify the defendant at a lineup, even though there was evidence the victim falsely claimed he/she could not identify anyone:

The court erred in denying defendant’s application, expressly made under Chambers v Mississippi (410 US 284 [1973]), to receive testimony that one of the robbery victims, who was unavailable to testify at trial, failed to identify defendant at a lineup. Of the requirements for admission of exculpatory hearsay evidence, the only one in dispute is the reliability of the nonidentification. Although there were reasons to suspect that this victim may have falsely claimed to be unable to identify anyone in the lineup, the nonidentification plainly bore sufficient “indicia of reliability” under the applicable standard, which “hinges upon reliability rather than credibility”… . Where the proponent of the statement ” is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt'” … . People v Cook, 2019 NY Slip Op 05210, First Dept 6-27-19

 

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CONVICTION AFFIRMED, THREE-JUDGE DISSENT ARGUED THE APPELLATE DIVISION EXCEEDED ITS AUTHORITY BY AFFIRMING ON A SEARCH-RELATED GROUND THAT WAS NOT RULED ON BY SUPREME COURT (CT APP).

The Court of Appeals, over a three-judge dissent, affirmed the suppression determination, without explaining the facts. The dissent mentions the facts briefly but argues that the Appellate Division exceeded its jurisdiction by affirming the conviction on a search-related ground that was not ruled on by Supreme Court:

The present case clearly falls into the category where the trial court’s decision has discrete sections enabling an appellate court to discern which issues it has considered and decided, and yet the Appellate Division reviewed an issue that the trial court had not decided adversely to defendant, offering “an entirely distinct alternative ground for affirmance” … . If a suppression court writes a “fully articulated” decision adverse to a defendant … , but omits discussion of a particular issue raised by the defendant, our law mandates that an appellate court cannot resolve the issue and must remit. Whether our interpretation of CPL 470.15 (1), in LaFontaine [92 NY2d at 474] and its progeny, is “undesirable from a policy point of view” … is a question for another day. LaFontaine is the law and, until such time as that precedent is overruled, “we are constrained by that decision, and . . . cannot be arbitrary in applying it” … . People v Hill, 2019 NY Slip Op 05187, CtApp 6-27-19

 

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